Friday, October 12, 2007

State justices express doubts about the scheduled execution of a Brevard killer.John Kennedy

Tallahassee Bureau Chief

October 12, 2007

TALLAHASSEE

Florida Supreme Court justices said Thursday that they are wary of proceeding with next month's scheduled execution of convicted Brevard County child-killer Mark Dean Schwab with the legality of lethal injection now in question.

The U.S. Supreme Court last month agreed to consider the constitutionality of lethal injection after two condemned Kentucky inmates said that state's procedure -- identical to what's used in Florida -- represents cruel and unusual punishment.

Since then, at least 13 states have halted executions, pending the high court's ruling.

"I can't see any urgency in going ahead and having an execution -- which is irreparable, obviously -- should the Supreme Court say we've got it wrong," Justice Harry Lee Anstead said.

Justice Barbara Pariente conceded that "it would look pretty bad for the administration of justice in this state if Schwab was executed and two weeks later" lethal injection was overturned.

The justices heard challenges to Florida's use of lethal injection by attorneys for Schwab and Ian Deco Lightbourne, who is facing the death penalty for an Ocala murder.

Schwab is scheduled to die Nov. 15 for the 1991 rape and murder of 11-year-old Junny Rios-Martinez of Cocoa. A death warrant has not yet been signed for Lightbourne.

Issues in both the state and federal cases center on whether the lethal three-drug cocktail used by Florida and 36 other states causes pain, and if officials are trained properly to conduct the procedure.

"There is a whole history of problems with lethal injection," Schwab's attorney, Mark Gruber, told the court.

In December, convicted killer Angel Nieves Diaz took 34 minutes to die -- twice as long as usual -- when executioners at Florida State Prison failed to properly insert intravenous needles, forcing the lethal chemicals into the condemned man's tissue rather than his veins.

Executions in Florida were halted, and state corrections officials required more staff training and better monitoring of proceedings in the prison's death chamber. Schwab is the first inmate scheduled to die since Diaz.

Assistant Attorney General Ken Nunnelley said Florida's procedures were sound before the Diaz execution and have improved since then. He said justices should not delay Schwab's execution.

"There is no basis for a stay," Nunnelley said.

John Kennedy can be reached at jkennedy@orlandosentinel.com or 850-222-5564.